Portal de Periódicos da CAPES

Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution

2004; Routledge; Volume: 45; Issue: 4 Linguagem: Inglês

0043-5589

Tom Ginsburg, Richard H. McAdams,

Legal Systems and Judicial Processes

TABLE OF CONTENTS INTRODUCTION I. THE PUZZLE OF COMPLIANCE WITH INTERNATIONAL ADJUDICATION A. Unexplained Compliance with International Dispute Resolution B. The Broader Puzzle of Compliance Without Sanctions II. THE COORDINATING FUNCTION OF ADJUDICATION A. The Pervasive Problem of Coordination 1. Coordination in the Iterated Prisoners Dilemma Game 2. Coordination in the Hawk/Dove Game B. The Emergence of Conventions in Iterated Coordination Games 1. The Evolution of Conventions: Background 2. The Imperfect Nature of Conventions: The Problem of Ambiguity a. Conventional Ambiguity b. Factual Ambiguity C. Perfecting Conventions Without Sanctions: Two Forms of Third-Party Expressive Influence 1. How Third-Party Influences Behavior in Coordination Games: The Focal Point Theory a. An Introduction to Cheap Talk and Focal Points b. Using Third-Party Cheap Talk to Construct a Focal Point c. Using Cheap Talk to Clarify Conventions: Resolving Conventional Ambiguity 2. How Third-Party Signaling Influences Behavior in Iterated Coordination Games: The Informational Theory D. The Demand for Expressive Adjudication and the Synergy Between Cheap Talk and Signaling 1. The Demand for Adjudication (and the Need for Signaling) 2. The Need for Cheap Talk (and Why Adjudicators Do Not Distinguish Their Signals from Their Cheap Talk) E. The Limits of Expression and the Need for Legal Sanctions III. APPLYING THE MODELS: THE EXPRESSIVE EFFECT OF INTERNATIONAL DISPUTE RESOLUTION A. A Brief History of Interstate Dispute Resolution B. Three Pre-ICJ Case Studies 1. Eastern Greenland a. History b. Ambiguities c. Results 2. Palmas Island Arbitration a. History b. Ambiguities c. Results 3. Conciliation of Japanese Loans a. History b. Ambiguities c. Results C. The International Court of Justice 1. Background of the ICJ 2. The ICJ as Coordinator: Evidence of Compliance 3. The ICJ as Coordinator: Types of Cases a. Border Disputes b. Other Property-Type Disputes c. Diplomatic and Other Immunities 4. The Limits of the ICJ: The Use of Force CONCLUSION Frequent compliance with the adjudicative decisions of international institutions, such as the International Court of Justice (ICJ), is puzzling because these institutions do not have the power domestic courts possess to impose sanctions. This Article uses game theory to explain the power of international adjudication via a set of expressive theories, showing how law can be effective without sanctions. When two parties disagree about conventions that arise in recurrent situations involving coordination, such as a convention of deferring to territorial claims of first possessors, the pronouncements of third-party legal decision makers--adjudicators--can influence their behavior in two ways. First, adjudicative expression may construct focal points that clarify ambiguities in the convention. Second, adjudicative expression may provide signals that cause parties to update their beliefs about the facts that determine how the convention applies. Even without the power of sanctions or legitimacy, an adjudicator's focal points and signals influence the parties' behavior. After explaining the expressive power of adjudication, this Article applies the analysis to a range of third-party efforts to resolve international disputes, including a comprehensive review of the docket of the International Court of Justice. We find strong empirical support for the theory that adjudication works by clarifying ambiguous conventions or facts via cheap talk or signaling. …